Naming A Justice

IT HAS ALWAYS BEEN POLITICS AS USUAL

Supreme Court vacancies have provoked fierce, colorful—and wholly partisan—battles since the earliest years of the Republic

When Thurgood Marshall announced his retirement from the United States Supreme Court last June, politicians and pundits across the country bewailed the President’s succumbing to “politics” when selecting Marshall’s replacement. “Where are the giants?” demanded Newsweek, adding that “politics is packing the court with mediocrity.” In fact, this Court’s intimate relation to “politics” is as old as the Court itself, and it has managed to give us, along with the pygmies, some giants. Starting with George Washington, every President selecting a Supreme Court justice has kept clearly in mind the nominee’s compatibility with his own governmental—that is, “political”- philosophy.

When nominating a new justice, the President always lauds the nominee’s “experience,” “background,” and “demonstrated legal ability.” The encomiums, however, come only after a selection process calculated to ensure that the newcomer’s future opinions will reflect the correct political outlook. Presidents leave after a term or two, representatives and senators fall prey to electoral accidents, but justices sit on the bench for life, preserving those principles for which the President who picked them has always stood—or so, at least, the President hopes.

This urge to select a justice for reasons other than his intrinsic merit strongly affected even the appointment of four of our greatest justices: Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis, and Felix Frankfurter. The history of their elevations illustrates both the persistence of the litmus test for selection and the development of the Senate’s role in the process.

In September 1810 Justice William Gushing died, the last of George Washington’s original Supreme Court appointees. To maintain geographic balance on the seven-man Court, President James Madison, planning to select a New Englander, found himself trammeled by the personal needs of his predecessor and political patron, Thomas Jefferson.

At the time, Jefferson was fighting a lawsuit brought against him in a Virginia federal court. The plaintiff, the Louisiana attorney Edward Livingston, was seeking one hundred thousand dollars in damages for trespass to riverfront land at New Orleans, an incursion Livingston alleged had been ordered by Jefferson and the then Secretary of State, Madison.

Jefferson, as one biographer has observed, “always viewed any legal proceeding against himself with a strange mixture of rage and panic.” He knew the case would come to trial in the federal circuit court for Virginia, whose presiding judges were the ailing Cyrus Griffin and Jefferson’s enemy Chief Justice of the United States John Marshall. Convinced that Marshall’s presence would deprive him of any chance at a fair trial, Jefferson spent almost a year trying to effect the appointment of a more sympathetic circuit court bench.

Marshall, of course, he could not touch. But Griffin seemed about to topple, and Jefferson had recently received a letter from John Tyler, father of the future President, asking for Griffin’s place, so that Tyler could, as he put it, “lay … down softly on a bed of roses in my latter days.” Jefferson immediately wrote Madison, urging Tyler’s appointment as a “counterpoint to the rancorous hatred which Marshall bears to his country.”

President Madison’s hunt for a justice became an unparalleled political farce.

When Griffin died in December 1810, Madison appointed Tyler. But like the careful lawyer he was, Jefferson knew that even with his man safely ensconced, he could still lose in the trial court. An appeal to the Supreme Court would follow, but of the seven justices, only three—his own appointees—professed Jefferson’s political faith. Thus, when death overtook Gushing, Jefferson called it “a Godsend” and seized the opportunity to push “the appointment of a decided Republican, with nothing equivocal about him.”

Madison’s efforts to accommodate Jefferson, compounded by his own maladroitness, turned the replacement hunt into a political farce unparalleled in Supreme Court history. First Madison chose Jefferson’s onetime Attorney General Levi Lincoln. The Senate confirmed him, but Lincoln, going blind, could not accept. Another of Jefferson’s close political associates, the former Postmaster General Gideon Granger, was a possible second choice. Earlier, however, he had lobbied so brazenly for the scandal-ridden Yazoo land scheme that Madison decided to not even try to submit his name.

Barnabas Bidwell, like Lincoln and Granger a prominent Massachusetts Republican, came briefly into the picture. His candidacy suffered seriously from his living in Canada, a fugitive from prosecution for embezzling state funds. By now claims of other New England states for what was considered a regional seat were complicating the process. Madison kept trying. He sent up the name of Alexander Wolcott, Connecticut’s Republican boss (“manager” was the term our more restrained forebears used). The most Wolcott’s supporters could say for him was that by hard study after joining the Court he would soon bring himself to his associates’ level of learning. The Senate, unimpressed, rejected him.